Tutoring, Retention and Support

January 8, 2013 | CUNY Matters, The University

U.S. Department of Education’s Office for Civil Rights Approves University’s Black Male  Initiative

The U.S. Department of Education’s Office for Civil Rights has closed discrimination complaints against CUNY’s Black Male Initiative programs, saying the campus mentoring and support programs comply with federal laws.

The action resolves complaints filed against the University in 2006 by the New York Civil Rights Coalition and its executive director, Michael Meyers, claiming that the Black Male Initiative (BMI) – begun in 2005 to boost the educational and employment prospects of underrepresented groups, particularly black males – segregated them while excluding those who were neither black nor male.

After a six-and-a-half-year investigation, federal officials said CUNY had worked to ensure that all University communications and materials concerning BMI programs make clear that all can take part. “None of the BMI programs or activities excludes persons who are not black and/or male from participating,” wrote Erin Gimbel, compliance team leader for DOE’s Office for Civil Rights (OCR), Region II, in a Nov. 23, 2012 letter to Chancellor Matthew Goldstein.

CUNY’s communications and discussions with the OCR confirm that “all programs and activities of the Black Male Initiative are open to all academically eligible students, faculty, and staff, without regard to race, gender, national origin, or other characteristic,” the letter said.

“The determination finds that, in all regards, the CUNY BMI program is legally compliant,” Chancellor Goldstein reported to the Board of Trustees at its Nov. 26 meeting. Characterizing the federal action “a big deal,” he said: “Although long overdue, this is a great result for the CUNY BMI and the many students it has served and continues to serve.”

OCR’s decision, he noted, makes it possible for BMI programs to seek grants from the Department of Education and other funders. He thanked the Trustees for their long support of BMI, saying that while the initiative may have been “somewhat controversial,” it was “the right thing to do.” He also thanked CUNY attorneys and BMI Director Elliot Dawes for their “outstanding work” on the protracted matter.

The Chancellor established a University Task Force on the Black Male Initiative in 2004, charging it with developing recommendations leading to projects to help black males overcome inequalities that lead to poor academic performance, school retention and graduation rates.

Senior Vice Chancellor Jay Hershenson said the BMI “was not created to promote race-exclusive programs but instead to help black males and others compete more effectively in higher education through mentoring, internships, and other support services.”

Meyers, who has contended that BMI programs segregate and stigmatize black males, said he would challenge OCR’s action.

The complaints filed in 2006 alleged violations of Title VI of the Civil Rights Act of 1964, which bars institutions receiving federal funds from discriminating on the basis of race, color or national origin; and of Title IX, which bars sexual discrimination by educational institutions. In response, OCR opened 18 investigations – two to probe the discrimination charges, and 16 for each CUNY campus that had a BMI program as of January 2008.

The BMI cases spanned two presidential administrations. The initial New York Civil Rights Coalition complaint, filed May 23, 2006 during the Bush administration, sought elimination of the BMI programs as alleged violations of Title VI’s ban on the use of race to exclude or segregate; it charged that the programs stereotyped black males and treated them differently on account of their race, a Title VI violation, and gender, violating Title IX. An amended complaint filed July 26, 2006 added an allegation that CUNY colleges improperly used “race, color, ethnicity and/or sex” in selecting and assigning teachers and staff to run BMI programs.

“The complainant contended in his May 23, 2006 letter that ‘Title VI and Title IX do not sanction ‘Black Male Initiatives’…  ” OCR’s Gimbel wrote in the Nov. 23 letter dismissing the cases. “It is not, however, a per se violation of Title VI or Title IX for a postsecondary institution to operate a race-themed and/or gender-themed mentoring and support program.”

OCR’s determination relied heavily upon guidance issued in 2011 by the U.S. Department of Justice and OCR that clarified the kinds of actions higher-education institutions could legally take to promote diversity, including race-themed mentoring and support programs.

“Many institutions operate mentoring, tutoring, retention, and support programs for enrolled students who may need additional assistance in academic or other areas to succeed at the institution,” DOJ and OCR said, explaining that such programs could include content “of particular interest to a group targeted for retention… A race-themed or gender-themed mentoring and support program would fall within this category of approaches if it does not exclude students on the basis of their race or sex and does not use race-or sex-exclusive recruiting.”

“Based on the information already provided by CUNY, and an additional assessment of the current status of the BMI programs, OCR has determined that the allegations are not appropriate for further investigation and resolution. OCR is thus administratively closing these 18 cases as moot, consistent with OCR’s case processing procedures,” its letter said, noting, “We regret the substantial delay in resolving these complaints.”

At the November Trustees meeting CUNY Deputy General Counsel Jane Sovern described the OCR cases as “lengthy, exhaustive,” and said “the BMI directors at the campuses were tireless” in providing documentation and interviews requested by OCR. She also recognized the outstanding work of BMI Director Elliott Dawes; Deborah Douglass, executive director of education and training opportunity programs at the University’s Office of Academic Affairs; and Associate General Counsel Heather Parlier.

During the Bush years, she said, CUNY “worked with OCR to negotiate a resolution agreement,” which was not finalized. But after Barack Obama’s election in 2008, “there was silence [from OCR] for many years,” Sovern said.

Then came the joint guidance issued by DOJ and OCR, clarifying permissible uses of race. It “read as if they were describing our BMI program,” said Sovern. CUNY counsel then contacted OCR and “provided them with additional information,” and OCR closed the cases, she said, “essentially vindicating the approach of the BMI.”

CUNY’s Black Male Initiative has been supported by the CUNY Board of Trustees, the New York State Board of Regents and the New York City Council.

“all programs and activities of the Black Male Initiative are open to all academically eligible students, faculty, and staff, without regard to race, gender, national origin, or other characteristic.” — Ruling by U.S. Department of Education Office for Civil Rights